Citation Nr: 0528655
Decision Date: 10/25/05 Archive Date: 11/01/05
DOCKET NO. 99-18 088 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased rating for chronic bronchitis,
rated as noncompensable prior to November 29, 2004, and 10
percent disabling effective November 29, 2004.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The veteran had active service from May1968 to October 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas, which denied the veteran's claims
for an increased rating for his service-connected bronchitis
and service connection for post-traumatic stress disorder
(PTSD). The Board notes that service connection for chronic
bronchitis was granted with a noncompensable evaluation
effective October 4, 1996, by a March 1997 rating decision.
The veteran's claim for an increased rating for the veteran's
service-connected bronchitis and service connection for PTSD
was received in March 1998.
In May 2002, the veteran was afforded a video conference
hearing before the undersigned Veterans Law Judge.
The issues of entitlement to an increased (compensable)
rating for chronic bronchitis and entitlement to service
connection for PTSD were remanded by the Board in September
2003. By an April 2005 rating decision, the RO granted
service connection for PTSD with an evaluation of 30 percent,
effective March 31, 1998. By the same rating decision, the
RO increased the veteran's service-connected chronic
bronchitis from noncompensable to 10 percent disabling,
effective November 29, 2004. Consequently, the issue of
entitlement to service connection for PTSD is no longer in
appellate status.
REMAND
The U.S. Court of Appeals for Veterans Claims (Court) has
indicated that a remand by the Board confers on the veteran,
as a matter of law, the right to compliance with the remand
orders. The Court further indicated that it constitutes
error on the part of the Board to fail to insure compliance.
Stegall v. West, 11 Vet. App. 268 (1998). In this case,
unfortunately, the Board's instructions in its September 2003
remand were not fully carried out.
The Board notes that it was explained in the February 2005 VA
examination report that maximum oxygen consumption testing
was performed neither at the Fayetteville VA Medical Center,
nor at any local hospitals located in northwest Arkansas. It
was also stated that the VA Medical Center was unsuccessful
in finding anyone to conduct the test on a fee basis. It was
stated, though, that Diffusion Capacity of the Lung for
Carbon Monoxide (DLCO) testing would, in fact, be done.
However, a review of the record reveals that such was not
accomplished.
Accordingly, the Board has no alternative but to defer
further appellate consideration and this case is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC for the following actions:
1. Schedule the veteran for VA pulmonary
examination in order to ascertain the
current severity of his chronic
bronchitis. The performance of pulmonary
function testing is essential, and any
other diagnostic studies deemed necessary
by the examiner should also be
accomplished. Testing should include the
full range of results necessary to rate
the disability under the diagnostic
criteria of 38 C.F.R. § 4.97, Diagnostic
Code 6600, to include FEV-1, FEV-1/FVC,
and DLCO (SB). The claims folders and a
copy of this REMAND must be provided to
and reviewed by the examiner in
conjunction with the examination. The
examination report should reflect that
such a review was conducted. All
clinical findings and opinions, and the
bases therefor, should be set forth.
2. Readjudicate the claim on appeal. If
the benefits sought on appeal remains
denied, the veteran and his
representative should be provided a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and discussion of all pertinent
regulations. An appropriate period of
time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).